On August 3, 2020, President Trump issued an Executive Order (“EO” or the “Order”) directing the heads of all agencies that enter into contracts to review the impact of contractors and their subcontractors employing H-1B visa holders on the wages and employment opportunities of US workers. Specifically, the EO directs all federal agencies to review whether US workers were negatively impacted or national security risks were created by the contracting and offshoring practices of federal agencies. The EO further directs the Secretaries of Labor and Homeland Security take action to prevent any adverse effects produced by the employment of H-1B visa holders on the wages and working conditions of US workers.

The theme is not a new one. On April 18, 2017, the President issued an EO announcing the policy of the executive branch as “Buy American Hire American” (“BAHA”). For a full description, visit our client alert concerning the BAHA order. The BAHA EO was an early signal of the new administration’s focus on limiting the admission of foreign workers, both temporary and permanent:

In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)) [the ground of inadmissibility for intending workers who lack labor certification].

The new EO follows closely on the heels of the recent Presidential Proclamation that bars the entry of non-immigrant workers in several categories, including H-1Bs.

A “Fact Sheet” released by the White House in conjunction with the latest EO, describes the Administration’s position that the H-1B visa category is being “misused” and “cost[ing] millions of Americans their jobs.” Having already reached that conclusion, the President’s call for a mere review of the impact of H-1B visa holders on the wages and availability of public sector jobs for US workers almost seems half-hearted.

  1. What Are The Actions Directed By The EO?

The EO directs the heads of all executive departments and agencies to review the performance of contracts in fiscal years 2018 and 2019, with a particular focus on the following aspects.

i.   Whether contractors or subcontractors used temporary foreign labor in the United States, and if so:

      • The nature of the services performed by temporary foreign labor;
      • Whether opportunities for US workers were impacted by the hiring of temporary foreign labor; and
      • Whether the hiring led to any effects on national security.

ii.   Whether contractors or subcontractors are performing work in foreign countries that was previously performed in the United States, and if so:

      • Whether opportunities for US workers were impacted by the offshoring practice;
      • Whether affected US workers were eligible for assistance under the Trade Adjustment Assistance program; and
      • Whether the offshoring led to any effects on national security.

iii.   Whether either the hiring or offshoring practices listed above negatively impacted the economy and efficiency of Federal procurement or national security.

iv.   Whether the executive department or agency remains compliant with citizenship requirements for federal workers and the salary appropriations for federal workers under the Consolidated Appropriations Act.

After the assessment, executive department and agency heads are to submit a report that summarizes findings and recommends corrective actions, if necessary.

In addition to the review and reporting requirements, the EO requests the Secretaries of Labor and Homeland Security take action to prevent any potential impacts on US workers caused by the employment of H-1B visa holders, including to ensure that the employers of these visa holders are in compliance with the H-1B employer attestation requirements of section 212(n) of the Immigration and Nationality Act (“INA”).

2.  What Should Employers Know About This EO?

Contractors and subcontractors should prepare for additional reporting requirements that may originate from the agency reviews directed by the EO. These new requirements may impose additional time and resource expenditures on federal contractors that would need to produce extensive reports on its workforce hiring and offshore practices.

The EO may also serve as a jumping-off point to revise the federal acquisition regulations to flat out ban the usage of H-1B workers and offshoring practices for government contractors and subcontractors. If this becomes reality, contractors with H-1B workers and offshore services should anticipate significant difficulties in procuring federal contracts. That approach is more likely than the Trump Administration imposing additional hurdles on federal contractors who may wish to sponsor foreign nationals for H-1B status, as the Trump Administration has routinely taken the most straightforward approach to enforce new restrictions on temporary labor.

Although private sector employers of H-1B visa holders (including government contractors and subcontractors whose workforces will be the subjects of the EO’s required reviews) are not directly impacted by the EO, the reviews and recommendations of the executive branch agencies could lead to further restrictions on the availability of needed talent for US employers in general.

The EO likely portends additional scrutiny of the H-1B visa category more broadly. The language used in the Order suggests that the Administration may be signalling prospective changes to the rules and regulations pertaining to employer-employee relationships for H-1B employers and additional measures to prevent H-1B visa holders from working at third-party job sites. This is particularly relevant to large employers of technology professionals that travel to client sites for installation, development, and maintenance, a major sector within the temporary foreign labor population in the United States.

Finally, the Order’s reference to section 212(n) may be a nod to future Immigration and Customs Enforcement inspections of H-1B employers. This section of the INA requires employers of H-1B workers to make certain attestations, including, for example, that the available H-1B position does not undercut American wages. As such, employers of H-1B workers should consider reviewing their H-1B compliance file sooner rather than later.

USCIS announced last week the implementation of adjustments that will slow the processing of Premium Processing Service cases, as well as increase filing fees for the majority of requests as part of a published Final Rule.

As covered in our previous blog post, a proposed Final Rule was reopened in January and the comment period extended to February 10.  On May 27, 2020, the USCIS Fee Rule went to the Office of Management and Budget’s Office of Information & Regulatory Affairs (OIRA).  OIRA completed its review on July 22, 2020, and the Final Rule was published on July 31, 2020.

In addition to lengthening processing for the Premium Processing Service and adjusting fees for petitions filed with USCIS, the Final Rule removes certain fee exemptions, changes fee waiver requirements, modifies intercountry adoption processing, and makes certain adjustments to filing requirements for nonimmigrant workers.

The Final Rule, including the adjusted fee amounts, is effective October 2, 2020.  Any application, petition, or request postmarked on or after that date must include the new fees under the Final Rule.

Adjustment to Premium Processing Timelines

As part of the Final Rule, USCIS has adjusted the processing time for its Premium Processing Service, which provides accelerated processing of some visa submissions for an additional filing fee ($1,440).  The Final Rule will increase the processing time from fifteen (15) calendar days to fifteen (15) business days.  This change will increase processing times associated with the Premium Processing Service, which will provide less flexibility to employers and lengthen the time required to secure approvals of work authorization.

Changes to Filing Fees for Nonimmigrant and Immigrant Petitions

The Final Rule adjusts the USCIS fee schedule to “provide for recovery of the estimated full cost of immigration adjudication and naturalization services,” according to the language in the published Final Rule.  DHS is adjusting USCIS fees by a weighted average increase of 20 percent, adding new fees for certain immigration benefit requests, establishing multiple fees for nonimmigrant worker petitions, and limiting the number of beneficiaries for certain forms.

Of particular note, USCIS has implemented varying filing fees for Form I-129, petitions with USCIS for H, L, O, E, and TN visas.  Under the Final Rule, each non-immigrant category will be subject to a separate fee rather than the current fee of $460.

Continue Reading USCIS Lengthens Premium Processing Timeline and Implements Fee Increases, Among Other Adjustments

United States Capitol Building
United States Capitol Building

USCIS Furloughs Postponed and Possibly Avoided

In June 2020, US Citizenship and Immigration Services (USCIS) served notice on The American Federation of Government Employees (AFGE), the union representing the agency’s 13,400 fee-based employees, that absent approval by Congress of $1.2 billion requested as part of the pending stimulus bill to make up for a precipitous drop in filings due to the COVID-19 pandemic, the agency would commence administrative furloughs as early as August 3, 2020, which, as reported in our July 9 post, was predicted to augment already significant delays in USCIS processing.  On Friday, July 24, 2020, the USCIS announced a one-month delay in the planned furloughs. The furloughs are now planned for August 31.

USCIS is funded primarily by fees collected for processing visas and citizenship applications, and the agency originally planned to furlough employees August 3 due to a projected loss of that revenue during COVID-19.   “Recent assurances from Congress, and an uptick in application and petition receipts, have allowed USCIS senior leadership the flexibility to responsibly delay the start date of the administrative furlough of approximately 13,400 USCIS employees until Aug. 30,” agency spokeswoman Jessica Collins said.

Fee Increase Approved by OMB

The fiscal situation for the benefit agency is likely to be helped as well by an expected increase in the fees USCIS collects for the petitions and applications it processes.   On November 14, 2019, the USCIS published in the Federal Register a proposal to adjust application fees to ensure all of its operational costs are covered. “USCIS is required to examine incoming and outgoing expenditures, just like a business, and make adjustments based on that analysis. This proposed adjustment in fees would ensure more applicants cover the true cost of their applications and minimize subsidies from an already over-extended system,” said Ken Cuccinelli, director of USCIS. In January of this year the proposal was reopened and the comment period extended to February 10, 2020. On May 27, 2020, the USCIS Fee Rule went to the Office of Management and Budget’s Office of Information & Regulatory Affairs (OIRA).  OIRA completed its review on July 22, 2020, and a final rule, to be effective 60 days thereafter, is expected to be published soon.

On July 14, 2020, President Trump issued an Executive Order that has redefined the country’s relationship with Hong Kong. The Executive Order appears to be in retaliation to the Chinese government’s legislative actions in May that imposed national security measures on Hong Kong. Specifically, the President denounced the actions of the People’s Republic of China (PRC or China) as “arbitrary” and PRC’s “latest salvo in a series of actions . . . [to deny] autonomy and freedoms . . . to the people of Hong Kong.” Under authority set forth in the United States-Hong Kong Policy Act of 1992, the Executive Order ostensibly rescinds the United States’ historical policy of treating Hong Kong as a separate entity from the PRC, forging broad reaching consequences on diplomatic relations, international trade, and immigration.

1.  How Will The Executive Order Affect US-Hong Kong Immigration?

The Executive Order removes Hong Kong’s preferential treatment as a separate customs territory.  The impacts of this new policy under the Trump Administration include the following:

i.  The United States will now apply the same rules of chargeability against Hong Kong Chinese Special Administrative Region (SAR) nationals as it does to China-Mainland Born nationals;

ii.  Hong Kong is removed from its participation in the Diversity Visa Program;

iii.  Hong Kong is removed from the Visa Waiver Program as it applies to Guam and the Commonwealth of the Northern Mariana Islands (CNMI); and

iv.  Hong Kong nationals will be held to China’s visa reciprocity schedule.

These provisions of the Executive Order have significant impacts on certain Hong Kong Chinese SAR nationals and their ability to immigrate to the United States.  In addition to no longer being eligible for certain visa waivers or diversity visas, Hong Kong Chinese SAR  will now be subject to the significant backlogs of available immigrant visas in the “China-Mainland Born” preference categories.  These backlogs are often several years longer than those of the “All Chargeability Areas” category, under which Hong Kong previously fell.  Additionally, Hong Kong Chinese SAR  will be subject to the entrance and time period limitations of the China nonimmigrant visa reciprocity schedule.  This means, for example, that a prospective H-1B worker from Hong Kong, who would have previously been eligible for a five-year visa, will now only be eligible for a one-year visa.

The Executive Order also terminates the Fulbright exchange program for future exchanges by participants traveling both from and to China or Hong Kong. The Fulbright Program is a global educational and cultural exchange program for students, scholars, artists, teachers, and professionals seeking to study, teach, or pursue research and professional projects around the world. The program was signed into law by President Truman in 1946, and is currently operated in partnership with more than 160 countries worldwide.

2.   What Should Employers Be Thinking About?

These changes will now need to play into the calculus for US employers who currently or will prospectively employ Hong Kong Chinese SAR in the United States. The new policy will significantly impacts the speed at which employers are able to secure long-term immigration statuses for their Hong Kong-born employees and the frequency with which the nonimmigrant statuses of these employees need to be reviewed. Employers should identify the population of Hong Kong Chinese SAR working in the United States, the visa statuses under which those employees were admitted, and the impacts to the ongoing validity of those statuses causes by the shift in chargeability and reciprocity.

Although the Trump Administration’s termination of the Fulbright Program does not largely affect employers, the decision to end this long-standing exchanging program is another signal of chilling relations between the United States and China and US immigration policy at large. Individuals with any vested interest in immigration to the United States must remain apprised of the constant, ongoing swings policy that we have seen over the last several months.

The State Department’s most recent guidance on the Executive Order stated that Hong Kong will continue to be considered a separate customs territory as long as the Hong Kong-US treaty remains in effect. Further information regarding implementation has not yet been announced; however, the order gives US immigration agencies just fifteen days to take all appropriate actions necessary to execute the new policy. Please continue to follow our blog for updates and ongoing changes in US immigration.

 

 

On July 18, 2020, Immigration and Customs Enforcement (ICE) issued an extension of a temporary policy allowing certain employers to conduct remote review and inspection of I-9 documentation for new employees. The policy was set to expire on July 19, but has now been extended through August 19, 2020. The extension provides employers with additional time to ensure good-faith compliance with the I-9’s in-person inspection requirement, but that does not mean that employers should wait for the policy to expire before beginning in-person reviews.

ICE’s Remote I-9 Inspection Policy

On March 20, as the COVID-19 pandemic began forcing widespread closures of physical workplaces, the Department of Homeland Security announced that it would begin allowing certain employers to collect, review, and inspect new employees’ I-9 documentation remotely, rather than in person. The announcement included several important caveats:

  • First, DHS made clear that remote I-9 inspection would only be an option for employers operating 100% remotely. If a given employer had employees physically present in the workplace, remote I-9 review would not be available and in-person inspection would be required.
  • Second, the policy was to be a temporary accommodation designed to allow remote employers to protect the health and safety of their workers during the COVID-19 pandemic.
  • Third, any employer that took advantage of remote I-9 inspection would have to complete in-person document review and collection within three business days of either the policy’s termination or the workplace’s reopening, whichever came first.

After an original validity period of 60 days, ICE extended its flexible approach to I-9 inspection by an additional 30 days in both May and June. ICE again renewed its remote I-9 inspection policy on July 18, permitting remote I-9 inspections through mid-August.

What Should Employers Do Now?

Employers should take affirmative steps to ensure good-faith compliance with the regulation’s in-person review requirement, even if they are still operating 100% remotely. Waiting until August 19 (or later if the policy is extended) to begin the process of in-person reviews for employees onboarded during the COVID-19 pandemic may be infeasible because employers would need to conduct months’ worth of in-person I-9 reviews within three short business days.

Instead, employers should consider utilizing an “authorized representative” to conduct in-person reviews of I-9 documentation and complete Section 2 of the Form I-9 with new hires. This approach offers several key benefits:

  • Because authorized representatives can be trusted friends, neighbors, or household members of the new employee, this strategy allows employers to conduct in-person reviews while maintaining adherence to social distancing guidelines.
  • While the employer would be responsible for any errors made by the authorized representative, by using such an agent the employer could reduce the backlog of remotely onboarded employees who would otherwise require in-person I-9 inspections once ICE’s remote inspection policy ends.
  • Using authorized representatives to assist with in-person review will also free up hiring personnel to coordinate, monitor, and audit I-9s completed by authorized representatives of the company.

Though ICE has chosen to extend its remote I-9 inspection policy for a third time, the flexible approach will not last forever. As just one indication of the agency’s desire to return to normal procedure, in the same news release announcing the extension of the remote I-9 inspection policy, ICE affirmed that no further extensions would be granted to employers who were served Notices of Inspection (NOIs) back in March. Thus, the longer employers wait to begin the process of in-person reviews, the more challenging it will be to maintain I-9 compliance once the remote inspection policy ends. We thus recommend employers consider addressing the issue proactively by designating authorized representatives to conduct in-person reviews now, even before going back to business in their offices.

This past Friday, Mayer Brown partner Ori Lev and co-counsel from the Southern Poverty Law Center argued before the Ninth Circuit in support of affirmance of a preliminary injunction that protects asylum seekers who had previously been “metered” – or told to wait in Mexico before they could even make a claim for asylum in the United States.  The preliminary injunction prevents the Trump Administration from applying a 2019 regulation requiring asylum seekers to have first applied for asylum in countries through which they traveled on their way to the United States to those individuals who were “metered” before the regulation was issued.  Mayer Brown is co-counsel with the Southern Poverty Law Center, the American Immigration Council, and the Center for Constitutional Rights in the case, which challenges the Trump Administration’s metering policy.  Law360 covered the argument and its take on the court’s perceptions of the merits of the case here.

 

On Sunday, July 19, 2020, a temporary Immigration and Customs Enforcement (ICE) policy allowing employers to conduct remote reviews of I-9 supporting documentation is set to expire. Unless the policy is extended, many employers will once again be required to conduct in-person inspections of new employees’ documentation, raising concerns about employers’ ability to comply with both social distancing guidelines and employment verification requirements. Given the ongoing public health crisis, employers are hopeful that ICE will extend its remote inspection policy again, but in today’s rapidly changing immigration environment, it would be imprudent to assume that DHS will continue its more lenient approach.

For example, just last week, ICE rescinded a temporary policy change that allowed international students on F-1 and M-1 visas to remain in the United States while their universities initiated emergency campus closures and transitioned to online learning. Under the updated policy, international students whose Fall 2020 course load is entirely online would have to depart the United States or risk violating their student visa status. The agency’s decision is already being challenged in court, but there is no guarantee that ICE would not pursue a similarly inflexible policy with respect to I-9 employment verification.

The I-9’s Physical Inspection Requirement

Under existing regulations, US employers are required to verify the identity and employment authorization of all new hires within three business days of the employee’s start date using the Form I-9. This verification requirement includes the physical inspection—in the new employee’s presence—of supporting documentation provided by the employee, such as a passport, green card, or Social Security card.

Due to the COVID-19 outbreak and companies’ abrupt shift to “working from home,” compliance with the physical inspection requirement became infeasible for many employers. In response, ICE adopted a more flexible approach to I-9 inspection, designed to enable employers to protect the health and safety of their workers while also maintaining good-faith compliance with the relevant immigration regulations.

Specifically, on March 20, the Department of Homeland Security (DHS) announced a temporary relaxation of the physical inspection requirement. Under the temporary policy, employers who are operating remotely:

  • Can receive and review employee documentation by video conference, email, or fax.
  • Must keep a record of all new hires for whom the physical inspection requirement has been deferred.
  • Must enter “COVID-19” as the reason for the delay of in-person inspection in Section 2 of each I-9.
  • Must complete physical inspections of all I-9 supporting documentation for remotely onboarded employees within three business days of resuming in-person operations.

This relaxation was initially valid for only 60 days. On May 14, ICE extended the remote inspection policy by 30 days, and on June 16, ICE again extended the remote inspection policy by an additional 30 days. ICE has not yet announced another extension of the policy, which is set to expire on July 19.

 What Does ICE’s Current Flexible Approach Mean for Employers?

Under ICE’s “flexible” approach to I-9 document inspection, all employers must still demonstrate good-faith compliance with the applicable law. However, the type of compliance required may depend on the current state of an employer’s operations.

  • Employers that are not 100% remote are expected to conduct in-person review and verification. ICE has said it may make case-by-case exceptions, but ICE has provided no guidance on what would trigger these exceptions.
  • Employers that are slowly beginning to bring their employees back to the workplace may also be expected to conduct in-person review and verification, as their operations would no longer be considered fully remote. Those employers may also be responsible for completing retroactive in-person inspections of I-9 documentation for any new employees who were onboarded remotely during the workplace closure. These in-person inspections would have to be completed within three business days of reopening, placing a heavy burden on employers at the time when management and staff are returning to work.
  • Employers that continue to operate 100% remotely must still (a) collect, review, and maintain copies of their employees’ I-9 documentation, (b) document all steps taken under the policy to maintain good-faith compliance, and (c) commit to in-person review once their workplace reopens.

What Happens If ICE Ends the Flexible Approach?

The principal impact would be on employers that continue to operate 100% remotely. If ICE allows its flexible approach to I-9 verification to expire without providing further guidance:

  • Employers operating remotely would be required to conduct in-person I-9 review and verification for all new hires, just like employers that are operating in-person and employers that have begun reopening workplaces.
  • Employers operating remotely would also have to conduct in-person I-9 verification for all employees onboarded during the flexibility period, and would have to do so within three business days after the end of the flexibility period.

To plan for a potential end to ICE’s flexibility, employers seeking to comply with both the I-9 verification requirements and social distancing guidelines may wish to designate an “authorized representative” to conduct in-person I-9 verification with new hires, regardless of whether their physical workplace is open or closed. Per DHS:

  • Employers may designate “any person” to act as their agent in conducting I-9 reviews and completing Section 2. By tapping a trusted neighbor or an individual in the employee’s household, the employer could thus comply with the in-person review requirement while also minimizing the risk of disease transmission.
  • Employers who use an authorized representative would then be responsible for any mistakes or infractions committed by the authorized representative.

For some employers, that may be a risk worth taking to avoid the spread of COVID-19. Whether or not ICE allows its temporary relaxation of in-person I-9 verification to expire on July 19, hiring professionals will have to pay increased attention to document collection, review, and maintenance in order to ensure I-9 compliance for all new employees brought on during the COVID-19 pandemic.

The Japanese government will look to begin discussions around mid-July to resume flights for certain qualified business purposes to China, Taiwan, South Korea, Singapore, Malaysia, Brunei, Cambodia, Myanmar, Laos and Mongolia. Further details on the Japanese government’s plans for negotiations are expected to be announced soon. As discussed in our prior post on  our COVID-19 Blog, this is in addition to similar discussions that have already began with Vietnam, Thailand, Australia and New Zealand. In late June, Vietnam allowed entry of approximately 450 business travellers from Japan into the country (subject to PCR testing upon arrival and a 14-day hotel quarantine).

Our COVID-19 Global Travel Navigator provides real-time updates of worldwide travel changes.

Some 70% of the 20,000 employees of US Citizenship & Immigration Services, the agency within Homeland Security that adjudicates visa-related benefits for all foreign workers, could face furloughs starting as early as August 3, 2020, unless Congress provides $1.2 billion in emergency funding. This budget shortfall was caused by a dramatic decrease in the number of petitions filed with the agency due to the pandemic.  USCIS depends on filing fee revenues to fund its operations.

During the last week of June, USCIS provided notice to AFGE, the union representing the agency’s employees, of the critical impact of the revenue gap the self-funded agency.  While the House Appropriations Committee has expressed its support for including some level of funding in the next phase of coronavirus response legislation, the Senate so far has declined to begin those negotiations. If a substantial portion of the $1.2 billion requested is not appropriated before the end of the month of July, some 13,400 fee-based employees will be furloughed, which will significantly impact adjudications, with the possible exception of emergency cases, such as those where children may “age-out” of a particular immigration benefit as a minor child.

Substantial delays in the processing of visa petitions and applications for naturalization will – inevitably – result. This will include delays in the processing of requests for extension of stay and change of status. Notably, we understand that the agency likely will continue to permit the premium processing of nonimmigrant petitions, including H-1Bs and L-1s, for example, as the additional $1,440 fee that the agency receives for those expedited cases is a large source of revenue for the agency.

If major regulatory changes occur, the dramatically reduced agency staff would face further challenges as training and oversight requirements would rise.  As reported in our June 23 blog post, the Trump administration’s recent proclamation freezing issuance of new H-1B, L-1, H-2B, J-1, and accompanying dependent visas also includes mandates for new rules in these and other categories, a rulemaking that is anticipated to occur shortly through immediately-effective Interim Final Rules.

 

Aerial over the University of North Carolina in the Spring

In a media release issued on July 6, 2020, Immigration and Customs Enforcement (“ICE”) announced a rollback of the protections it afforded to foreign students in light of the COVID-19 outbreak. The July 6 release announced that foreign students will no longer be eligible for F-1 visas or to remain in the United States to participate in online-only courses of study. Coming only six weeks before the start of the fall semester, the guidance has raised serious concerns for premier US universities, for which foreign students provide one of the greatest sources of revenue, already leading Harvard and MIT to file suit challenging the sudden reversal in posture only six weeks before the start of the fall semester. Other major universities, accompanied by business groups and a number of state attorneys general, are considering challenges to the new policy.

The policy change is expected to affect an estimated more than 1 million student visa holders in the United States, as well as others presently outside the United States who have been admitted for the fall semester.  Students currently in the United States and planning to attend schools that have elected to offer online-only classes in the fall 2020 semester “must depart the country or take other measures, such as transferring to a school offering in-person instruction to remain in lawful status” per the release.

Continue Reading New ICE Directive Threatens Status of More Than One Million Foreign Students and Prompts Immediate Lawsuit